I thought I would have a closer look at a case I mentioned here briefly a few weeks ago. The case is the Court of Appeal decision in Re W (A Child), which concerned an appeal by a Spanish father against an order setting aside an earlier order that his son is returned to Spain. I think the case is of some importance.
I have written here often about cases under the Hague Convention, concerning applications for the summary return of an abducted child. The essential rationale behind the Convention procedure is that children abducted from their ‘home’ country should be quickly returned there unless there is a very good reason why not. Contrary to a common misconception, the procedure is not there to determine where the child should live – that is a matter that should normally be determined by the courts of the child’s ‘home’ country, once a return has taken place. The idea behind this is that it is the courts of the ‘home’ country, rather than those of the ‘new’ country, that are best placed to make decisions regarding the child’s welfare.
As will be obvious from the above, speed is usually of the essence in Hague cases. If a return is appropriate (and it will be in most cases), then it should happen as quickly as possible, so that the courts of the ‘home’ country can deal with the issues relating to the child’s welfare (assuming they have not been resolved) without delay. This means that not only should the Hague application be determined quickly (normally within six weeks), that determination should also normally be implemented (i.e. the child returned) as soon as possible.
But sometimes, as we will see, things are not quite so straightforward. Re W considers in particular how the courts should approach a case in which there is a fundamental change of circumstances following a decision to order the child to be returned.
The facts in Re W were quite simple. The mother is British, and the father is Spanish. They have one child, who is now aged 8. They lived together in Spain, and when they separated it was agreed that the child would live with the mother and have regular contact with his father.
On the 12th of October 2016, the mother travelled to England with the child. As Lord Justice Moylan, giving the leading judgment of the Court of Appeal, said, it appears to have been accepted that this was a wrongful removal.
For reasons that are not clear, the father did not make his Hague application until July 2017. The mother opposed the application, in part on the basis that a return would expose the child to physical or psychological harm or otherwise place him in an intolerable situation That allegation was founded upon the detrimental effect that a return would have upon the mother’s mental health.
The mother’s defence was rejected and, at a hearing in November 2017, the High Court ordered that the child is returned to Spain by the 28th of December, on the basis that he would remain in the mother’s care. The mother applied to have the order set aside, on the basis that her already precarious mental health had “markedly deteriorated” since the hearing. Her application was eventually heard in March this year. The judge accepted that there had been a “sea-change” since he had made the order, because of a significant deterioration in the mother’s mental health, and therefore set aside the order.
The father appealed, to the Court of Appeal. It was argued on behalf of the father that the High Court did not have jurisdiction to set aside an order made under the Hague Convention. This was really the crucial point in the appeal. In the event, however, it was not addressed by the Court of Appeal, as it was accepted that whether or not the appeal succeeded, the Hague application would have to be reheard, and the appeal, therefore, became academic.
Nevertheless, Lord Justice Moylan did give a provisional view upon the point. He concluded that the High Court does have power under the inherent jurisdiction to review and set aside a final order under the Hague Convention. This power, he said, could be exercised when there had been a fundamental change of circumstances which undermined the basis upon which the original order was made. However, he did make clear that the re-opening of a final Hague order (whether for return or non-return) is likely to be a rare event, and that any application for such an order would necessarily have to be filed without delay.
As to the father’s appeal, this was ‘technically’ dismissed, and the Hague application was listed for rehearing, as a matter of urgency.